ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – V: The Author Responds

(We close our discussion of Anuj Bhuwania’s Courting the People: Public Interest Litigation in Post-Emergency India, with a response by the author).

I want to begin with a note of sincere thanks to Gautam Bhatia for initiating this intense discussion on my recently published book ‘Courting The People’ on this wonderful blog, which has become such a useful resource for many of us. As an author, I could not have asked for more. To have three readers reading closely and commenting carefully on a book in quick time is really overwhelming, especially when they are of the calibre of Aparna Chandra, Suhrith Parthasarathy and Gautam Bhatia. I feel immensely fortunate to have them as my interlocutors here.

Addressing Gautam Bhatia’s critique

Bhatia began the discussion with an excellent introduction to the themes of the book, providing a much better summary than I myself could have managed. In his critique then, he makes some important points that I will try to address here.

Paternalism vs Populism

I agree with Bhatia that paternalism in the Indian higher judiciary, where the judges claim prior superior knowledge of the Indian people and their strange proclivities and tendencies, dates from before the PIL era. But since the birth of PIL, the court also manages to speak for the people, not just of the people.  The former is classic populism, the latter paternalism— an important difference, though the latter is, of course, alive and well. The former tends to rely on a rhetoric of suffering, the latter on the narratives of the insufficient modernity of Indians. These two tendencies get interestingly deployed together in the Bhopal disaster judgments of 1989-91. The victims’ suffering becomes the pretext to justify the unseemly haste of settlement, while at the same time the suffering masses don’t really need to be heard in their own cause, as they are irresponsible and incompetent. (For instance, the court justified the expropriation of the victims’ right to legal redress thus: “It is necessary for the State to ensure the fundamental rights in conjunction with the Directive Principles of State Policy to effectively discharge its obligation and for this purpose, if necessary, to deprive some rights and privileges of the individual victims or their heirs to protect their rights better and secure these further.”)

Earlier, the judges relied on their own sociological insights (with colonial antecedents) about the Indian people and thereby came to paternalistic conclusions regarding the need for censorship, or trusted their own sastric knowledge even to attempt a task as difficult as defining Hinduism (Sastri Yagnapurushadji vs Muldas). But I would not compare Justice Hidayatullah or Justice Gajendragadkar to a Justice Bhagwati or a Justice Dipak Misra, in terms of looseness of legal language. The ability to ground clearly extra-legal arguments and facts in legal terms has certainly shown a decline.

The Migration of PIL Logic to Civil Liberties Cases

On the tendency of the post-PIL appellate courts to issue guidelines, Bhatia has discussed how they can become a convenient copout in civil liberties cases. To add to his points on this issue, as I have also argued in Chapter 1 of the book,  very rarely do these guidelines travel from the court’s legislative mode to its adjudicative mode: i.e., hardly ever do the actual violations of these guidelines reach the court again in its adjudicative avatar. Hardly ever does the court dealt with evidence of violations of its guidelines or pronounce on reliefs for them. They are another instance of (judicial) legislations without any infrastructure for their implementation, rights without remedies.


On Aparna Chandra’s review

Aparna Chandra has written a masterly review of my book. In order to address some of her criticism, I have been forced to think more carefully about some of the points I have made

Understanding the teleological mode

I completely agree with Chandra’s broad point, i.e., that the teleological mode of reasoning has taken deep roots in Indian constitutional interpretation. I would suggest that this entrenchment of teleological judicial reasoning is the fruit of Article 31C’s poisonous tree. While the innovation of Article 31B (and the 9th Schedule) is justly infamous for trying to protect the Constitution from itself, at least it was a blanket provision that left the rest of the Constitution untouched. The legacy of Article 31C, which aimed to restrict judicial review of all laws that ‘claimed’ to implement directive principles, and the line of thought it represents, has been far more insidious, and has infected Indian constitutional culture itself.  We often forget that the argument of ‘committed judiciary’ was the requirement of a commitment to the Directive Principles. And the official aim of the 42nd amendment was to give Directive Principles precedence over Fundamental Rights.  Over time, this mode of argumentation has infected Indian legal academia as well. It has become our common sense approach to legal interpretation: whether it is to evaluate a case or a statute.

In Chapter 4 of the book, I examine in some detail Justice Bhagwati’s talisman (as I call it) in which he suggests that judges should be teleologically inclined in their activism. The normativisation of such judicial behavior is in one way the culmination of the committed judiciary argument. I draw parallels between Mohan Kumaramanglam’s 1970s call for a committed judiciary,  and Justice Bhagwati’s reasoning in his 1985 article, but with a key difference. While the 1970s discourse required judges to give the legislature carte blanche so as to bring about the social revolution legislatively through the Directive Principles, the 1980s version, with PIL, needed the judges to be the vanguard.

As a corollary to this difference between the two approaches, there are two different ways in which the Courts may be teleological: one is the specific mandate of Article 31C’s logic [the1970s version], which protects statutes professing certain aims from judicial review. This immunization approach continues today and has become entrenched in constitutional cases, where the court often decides that the goals of a statute can trump fundamental rights. The goals could be fighting terrorism in Kartar Singh vs State of Punjab, controlling population in Javed vs State of Haryana, , or the desirability of sanitation in Rajbala vs State of Haryana.

The second approach is when the logic of Article 31C, and the concomitant discourse of committed judiciary, requires the judges to act teleologically, not just in immunizing statutes in cases, but in furthering the cause of social revolution through the expansion of judicial power itself. As Justice Bhagwati would say, the aim should be juristic activism to bring about social change. Now this itself can typically be done in 2 ways: interpreting legal doctrine creatively but also in transforming judicial process itself. The former in this case would be to read all kind of directive principles or international law into Article 21, or e.g,, creating the notion of ‘absolute liability’ ex nihilo (the quality of hermeneutic labour done by judges being of no concern of course.) That is, while one aspect of judicial teleological behaviour in this expansive sense still relates to statutory interpretation (though without much regard for the text of the Constitution or basic legal argumentation), the second is with regard to how to go about judicial proceedings themselves, which the radical departures of PIL make possible. At this point, all three versions of the teleological approach can be observed within the Indian judicial behavior: the immunization approach espoused in 1970s sits comfortably with the expansion of judicial power through the excesses of Article 21, as well as the annihilation of procedure achieved through PIL.

Throughout the book, I focus on the latter: i.e., PIL cases, and how they have set the pace for the negation of procedure. This form of laxity in judicial process has bled from PIL to even non-PIL cases. PIL cases are no longer entirely exceptional in this regard. In my conclusion I give the example of a non-PIL civil dispute, albeit a particularly famous one: the judgment by the Lucknow bench on the Babri Masjid/ Ram Janmabhoomi dispute to show that this mode of judicial behaviour is now found across jurisdictions. However, at one point in chapter 1, I suggest that the delegitimisation of procedure in PIL cases and judicial process more generally (my primary focus in the book) achieved through teleological reasoning of the third kind has perhaps fed into the concomitant discourse of the Courts giving short shrift to procedural safeguards (or the absence thereof) in repressive criminal statutes, when it consistently upholds them (the teleological approach of the first kind, ie the  immunization approach), accepting curtailment of judicial oversight in criminal inverstigations. In her review, Chandra takes issue with this, pointing out that it need not flow directly from PIL. Admittedly, in this instance, perhaps I have jumped from correlation to causation, and if so, then mea culpa. However, the coincidence of the two developments occurring simultaneously made the resemblance uncanny.

Transformations in Substantive law

Chandra has argued that changes in substantive law since the 1970s are important to the history of  PIL. While I do not deny that the so-called ‘Article 21 jurisprudence’ (one can instead use a colloquialism and call it the ‘Raita of Article 21’) has played a crucial role in this history, its extreme expandability since the early 80s can also conversely be read as a byproduct of the PIL (non)procedure. The need for ratiocination in judicial prose and a basic fidelity to law are themselves procedural principles as well. The rise of PIL and its attack on every other aspect of judicial procedure has also meant that minimal hermeneutic labour in the form of judicial justification is no longer at a premium. I would not belabor this “substance vs procedure” point but I do believe that PIL is a particularly important part of this story, because it enables the court to change its process itself. The new goal-oriented approach finds procedure as merely  “a handmaiden to justice” which can be done away with in the name of substantive justice. The instances I look at in Chapter 2 and 3, where a cause of action in a writ proceeding can change 9 times, where the Court can repeatedly take decisions without hearing affected parties, where it creates its own enforcement machinery – all illustrate the powers that the PIL court can operationalize. This is not just about judicial logic, but about the entire judicial process, from the initiation of a case to the obtaining and weighing of evidence, even the implementation of its decision. All this can now be shortchanged, thanks to PIL. The rhetoric of immediacy (i.e., the mediation of procedure as no longer essential to justice) ties up with that of teleological reasoning in the rise of PIL.

Why process?

Chandra helps explain why I think process is so important. Just to add to that: if fundamental tenets of judicial process are not being followed, it is a moot question if the proceedings can be  called adjudication at all. I think J. Pathak in Bandhua Mukti Murcha vs Union of India makes this point very well:

“Whatever the  procedure adopted by the court it  must  be procedure known to judicial  tenets and characteristic of a judicial  proceeding.  There are  methods  and avenues of procuring material  available to  executive and legislative agencies and  often employed  by them  for the efficient and effective discharge  of the tasks before them. Not all those methods and avenues are  available to the Court. The Court must ever  remind itself that one of the indicia identifying it as  a Court is the nature and character of the procedure adopted by  it in  determining a  controversy. It is in that sense limited in the  evolution of procedures pursued by it in the process of  an adjudication,  and in  the grant   and execution of  the relief.  Legal jurisprudence     has in its historical development identified  certain fundamental principles which form the  essential constituents of judicial procedure. They are employed in every     judicial proceeding, and constitute the basic  infrastructure along     whose    chamacts  flows     the power of  the Court  in the process of adjudication.”

On selective enforcement

Chandra’s point about efficacy of enforcement of certain PIL cases over other PIL cases is a very important one. I try to give the example of ‘the Sealing case,’ one of the avatars of WP 4677/1985, as another instance where the court’s attempt at grand social engineering of Delhi ultimately fails.  But the Court did pursue this particular case with a lot more tenacity than the Vishaka and the Aadhaar cases. In the ‘Sealing Case’, the court repeatedly took up contempt cases against non-enforcement and stayed governmental attempts at diluting its orders. In the Aadhaar case, the court has been not so proactive. On the other hand, enforcing Vishaka is in the realm of pronouncing an ambitious new legislative norm, without having the enforcement mechanism.

Why rely on Ely

Lastly, on the arguments of John Hart Ely:I would argue that Ely’s representation-reinforcement theory of judicial review applies to India. It provides the most persuasive account of how judicial review (which is, by definition, counter-majoritarian), can potentially perform an important democratic function.The preference for judicial populism over judicial review by Indian courts has meant an abandonment of this democratic function, as was evident most clearly in Suresh Kumar Koushal vs Naz Foundation. And also, to my mind, we need to be more skeptical of the interventionist conception of the State, expounded in the Directive Principles. The romance of the vanguardist Indian State, tasked with reforming the unruly Indian social milieu, which also forms the ideological basis of PIL, needs to be swiftly abandoned. There is an acute need to see how dangerously fascistic concepts we so easily use in India, such as ‘social engineering’, can be.


On Suhrith Parthasarathy’s intervention

Locus Standi

Parthasarathy makes a beautifully argued point that a too narrow reading of locus standi would go against the express provisions of Article 32 and Article 226. I am in full agreement with his argument, but I do think that the other extreme that we have been saddled with because of PIL, i.e. the complete dilution of locus standi, is not the answer either. Instead a way forward that I would suggest is that we try to analytically distinguish ‘representative standing’ from ‘citizen standing’.

An insistence on ‘representative standing’ (either as associational standing in cases of associations/ social movements or secondly, even individuals with some relation to the victims themselves, extrapolating the logic of habeas corpus where the detained person for some reason cannot come to court) should be preserved. The Mumbai Kamgar Sabha Case would be  a simple example of this form of standing. Besides PUDR and Bandhua Mukti Morcha, which Parthasarathy discusses, other examples of such representative petitioners from recent litigation would be Safai Karamchari Andolan and Narmada Bachao Andolan. In the second instance, representative standing could be thought of as similar to a class-action suit, except with a non-class member representing the larger group. Examples of this are Nandini Sundar case and Olga Tellis, where there were co-petitioners who were directly affected. These cases got named after the non-class petitioners, even though class members were petitioners too.

It would be useful to distinguish these instances from ‘citizen standing,’ which allows any citizen to file a petition on an issue completely unconnected with her own life and work. A complete dilution of locus standi is precisely the reason why the Judge can reduce the Petitioner to an informant (as if she is just filing an FIR), and make her redundant without any major loss to the process of the litigation. In other words, the Judge sees no harm in expropriating the litigation from such a petitioner. Many of the processual problems I discuss emerge from this. Reconceptualising locus standi this way could be part of thinking of an alternative. And yes, Justice Pathak’s opinion in Bandhua Mukti Morcha reminds us of what could have been, and is still worth returning to.

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2 Comments

Filed under Book Discussions, Courting the People, Public Interest Litigation

2 responses to “ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ – V: The Author Responds

  1. Pingback: ICLP Book Discussion: Anuj Bhuwania’s ‘Courting the People’ — Roundup | Indian Constitutional Law and Philosophy

  2. The PIL concept was a tool and like all tools and processes, it too was amenable to subversion for inappropriate purposes. This is increasingly the case today.

    The point about due process is important. The PIL process in its ideal form is not about discarding due process, but was rather about modifying due process for the benefit of those who were unable to access adversarial justice. But a lot of PIL today, is about the blatant violation of due-process rights of the weaker stakeholders.

    Like any court process, PIL can only legitimately work only if the actors involved in the adjudication process work with integrity and competence. Thus for PILs to achieve positive outcomes, the Court must make itself aware of all the relevant facts, it must hear all stakeholders, and it must frame effective remedies.

    Why PILs have failed and are failing to achieve normatively positive results is a complex subject area of research that would need to look at many things including:
    – the role played by the amicus/ petitioner
    – the integrity of the judicial process
    – the effect of the way the Supreme Court hears cases, timing and frequencies of hearings
    – the effect of court procedure in general and the specific court process adopted
    – the integrity and competence of judicial actors

    Several PILs never get heard. An analysis of those would also be useful. Others get heard for decades and become a semi-permanent function of the Bench. What determines which PILs get heard and which do not. I would imagine the hard PILs are the ones which do not get heard.

    The Supreme Court’s proclivity to act outside procedure and even outside substantive law is established even by non PIL – the Sahara case and the incarceration of Subrata Roy being a prominent recent example.

    So while Anuj Bhuwania has undertaken a very useful critique of the PIL concept, the problem really is not the concept of PIL. A much broader critique of the Court and the judicial process In India is necessary to understand why and how the PIL tool gets subverted.

    The Supreme Court has also failed to use both PIL and ordinary litigation to push for institutional reform in India. Instead the Court’s proactive role in taking over the functions of regulatory institutions has contributed to institutional decay and corruption. This is another reason why PIL in India has had no real lasting positive impact.

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